Citation Nr: 0100501
Decision Date: 01/09/01 Archive Date: 01/17/01
DOCKET NO. 99-18 552 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to dependency and indemnity compensation
under the provisions of 38 U.S.C.A. § 1318.
3. Entitlement to compensation for the death of the veteran
as a result of medical treatment by the Department of
Veterans Affairs.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant, her son, and her stepdaughter
ATTORNEY FOR THE BOARD
James A. Frost, Counsel
INTRODUCTION
The veteran served on active duty from December 1943 to
December 1946. He died on February [redacted], 1998. The
appellant is his surviving spouse.
This appeal to the Board of Veterans' Appeals (Board) arises
from a rating decision in March 1998 by the Waco, Texas,
Regional Office (RO) of Department of Veterans Affairs (VA).
The Board notes that, by rating action in June 1998, the RO
denied entitlement to accrued benefits, and the appellant did
not appeal that determination.
FINDINGS OF FACT
1. The veteran was separated from active service in December
1946.
2. During his lifetime, he was rated as 100 percent disabled
from July 1991.
3. He died in February 1998.
CONCLUSION OF LAW
Entitlement to dependency and indemnity compensation under
the provisions of 38 U.S.C.A. § 1318 is not warranted.
38 U.S.C.A. §§ 1318, 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board notes that, on November 9, 2000, the President
signed into the law the Veterans Claims Assistance Act of
2000 (VCAA), which applies to all pending claims for VA
benefits and which provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate the claimant's claim for a benefit under a
law administered by VA. In the instant case, with regard to
the appellant's claim of entitlement to dependency and
indemnity compensation under the provisions of 38 U.S.C.A.
§ 1318, the Board finds that additional assistance is not
required, as the disposition of the appeal on that issue
depends on the evidence and rating actions which were of
record prior to the veteran's death. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, Section 3(a),
114 Stat. 2096, ___ (2000) (to be codified at 38 U.S.C.
§ 5103A).
38 U.S.C.A. § 1318 provides that benefits are payable to the
surviving spouse of a deceased veteran in the same manner as
if the veteran's death were service connected when the
veteran was in receipt of or entitled to receive compensation
at the time of death for a service-connected disability that
either
(1) Was continuously rated totally
disabling for a period of 10 or more
years immediately preceding death, or
(2) if so rated for a lesser period, was
so rated continuously for a period of not
less than five years from the date of
such veteran's discharge or other release
from active duty.
In the veteran's case, a rating decision in October 1995
granted an increase evaluation of 100 percent for organic
brain syndrome with history of skull fracture and major
depression, effective July 2, 1991, approximately six and a
half years prior to the veteran's death in February 1998.
The veteran was thus not continuously rated totally disabled
for a period of 10 years immediately preceding his death, nor
was he rated totally disabled for five years from his
discharge from service in December 1946.
The regulation provides that issues involved in a survivor's
claim for death benefits will be decided without regard to
any prior disposition of those issues during the veteran's
lifetime, except with respect to benefits under the
provisions of 38 U.S.C.A. § 1318. See 38 C.F.R. § 20.1106
(2000). The United States Court of Appeals for Veterans
Claims (Court) has held, under 38 C.F.R. § 20.1106, that, if
decisions rendered during the veteran's lifetime demonstrate
that he did not have a total disability rating for a
continuous period of 10 years immediately preceding death, a
survivor must show clear and unmistakable error in the
pertinent decision or decisions during the veteran's lifetime
in order to establish entitlement to dependency and indemnity
compensation under 38 U.S.C.A. § 1318. See Marso v. West, 13
Vet. App. 260, 266 (1999).
The appellant has not alleged, and the record does not show,
that any rating decision during the veteran's lifetime
involved clear and unmistakable error so that, if a decision
not involving clear and unmistakable error had been made, he
would have been entitled to a total disability rating for 10
or more years immediately preceding his death. The Board
concludes, therefore, that entitlement to dependency and
indemnity compensation under the provisions of 38 U.S.C.A.
§ 1318 is not established.
As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine does not apply.
38 U.S.C.A. § 5107(b) (West 1991).
ORDER
Entitlement to dependency and indemnity compensation under
the provisions of 38 U.S.C.A. § 1318 is denied.
REMAND
Applicable regulations provide that the death of a veteran
will be considered as having been due to a service-connected
disability when the evidence establishes that such disability
was either the principal or a contributory cause of death.
The service-connected disability will be considered as the
principal (primary) cause of death when such disability
singly or jointly with some other condition was the immediate
or underlying cause of death or was etiologically related
thereto. A contributory cause of death is inherently one not
related to the principal cause. In determining whether the
service-connected disability contributed to death, it must be
shown that it contributed substantially or materially; that
it combined to cause death; that it aided or lent assistance
to the production of death. It is not sufficient to show
that it casually shared in producing death, but rather it
must be shown that there was a causal connection. 38 C.F.R.
§ 3.312 (2000).
The appellant alleges that a service-connected "brain
problem" contributed to the veteran's death. The record
shows that the veteran died while he was a patient at a VA
medical center. During his terminal hospitalization, a
neurological consultation found that he had loss of cortical
functioning and was in a vegetative state. With his family's
permission, he was placed on comfort care and died several
days later. His claims file contains the hospital summary
from his admission in January 1998, but does not contain the
complete hospital chart for that admission, which, the Board
finds, should be obtained and associated with the claims
file.
The veteran's death certificate lists the immediate cause of
death as anoxic brain injury due to or as a likely
consequence of cardiopulmonary arrest due to or as a likely
consequence of congestive heart failure. An autopsy was not
performed.
As noted above, at the time of the veteran's death, his
service-connected disabilities included organic brain
syndrome. The original grant of service connection after
World War II was expanded to eventually include organic brain
syndrome. A rating decision in March 1947 granted service
connection for a healed, incomplete fracture of the skull, no
residual shown. A rating decision in April 1949
characterized the disability as incomplete fracture of the
skull with severe anxiety state. A rating decision in
February 1951 characterized the disability as traumatic
encephalopathy with anxiety neurosis and impaired vision. A
rating decision in October 1955 characterized the disability
as moderate anxiety reaction. A rating decision in November
1960 characterized the disability as reactive depression.
Finally, a rating decision in October 1995 characterized the
disability as organic brain syndrome with history of skull
fracture and major depression.
The characterization of the veteran's disability in February
1951 was made after an electroencephalogram (EEG) and a
neurological examination. The EEG was performed in October
1950 after the veteran complained of headaches in the crown
of his head. The EEG impression was that the study was
borderline normal, with a fast trend thought to be due to
psychopathy or barbiturates; a right prefrontal focal trend
was found to probably indicate right-handed type of cerebral
dominance. The relationship of the findings to the veteran's
alleged trauma was reported to depend on neurological
findings at that time. At a VA examination in January 1951,
the EEG and examination findings did not indicate central
nervous system damage. The veteran's headaches were presumed
to be psychogenic and associated with anxiety reaction.
The diagnosis of organic brain syndrome was first made in
June 1992, when the veteran's memory was noted to be markedly
impaired. At a VA examination in May 1995, diagnoses
included chronic organic brain syndrome secondary to trauma
and to vascular disease.
Upon review of the record, the Board finds that it would be
helpful if the physician who signed the death certificate
clarified the cause or causes of death, and to have the
opinion of a neurologist on the issue of the relationship, if
any, between the veteran's service-connected disability and
his cause(s) of death.
Title 38, United States Code § 1151 provides that, where a
veteran suffers an injury or an aggravation of an injury
resulting in additional disability or death by reason of VA
hospitalization, or medical or surgical treatment, and the
proximate cause of the additional disability or death was
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance or fault on VA's part in
furnishing the medical or surgical treatment, or the
proximate cause of additional disability or death was an
event which was not reasonably foreseeable, compensation
shall be awarded in the same manner as if such disability or
death were service connected. The requirement to show that
the proximate cause of the additional disability or death was
fault on VA's part or an event which was not reasonably
foreseeable was added to the statute by amendments made by
Public Law 104-204 and applies to claims for compensation
under 38 U.S.C.A. § 1151 which were filed on or after
October 1, 1997. VAOPGCPREC 40-97, 63 Fed. Reg. 31263
(1998). As the appellant filed her claim after October 1,
1997, the amendments to the law apply in this case.
Upon review of the testimony of the witnesses at the personal
hearing in December 1998, it is unclear whether the appellant
is actually contending that the veteran's death was a result
of VA medical treatment. In any event, under the VCAA, the
Board will obtain an opinion from a neurologist as to the
relationship, if any, between the veteran's death and VA
treatment.
Under the circumstances, this case is REMANDED to the RO for
the following:
1. The RO should obtain from the VA
Medical Center, Dallas, Texas, the chart
of the veteran's admission from January
27, 1998, to February [redacted], 1998, and
associate it with the claims file.
2. The RO should write to Susan Fesmire,
M.D., 4500 South Lancaster Road, Dallas,
Texas, 75216, and request that she state
whether the veteran died of an anoxic
brain injury due to or as a likely
consequence of cardiopulmonary arrest or
as a result of cardiopulmonary arrest due
to or as a likely consequence of an
anoxic brain injury.
3. The RO should then refer the
veteran's claims file to a specialist in
neurology and request that he or she
review the veteran's service medical
records and postservice medical records,
including the chart of his final VA
hospital admission. The reviewer should
offer an opinion on the following
questions: Is it at least as likely as
not (a 50 percent or more likelihood)
that organic brain syndrome and/or any
encephalopathy due to residuals of a
skull fracture caused or substantially or
materially contributed to the veteran's
death? Was the veteran's death in any
way the result of the treatment which he
received during his final VA
hospitalization from January 27, 1998, to
February [redacted], 1998? A rationale for the
opinions expressed should be provided.
Following completion of these actions, the RO should review
the evidence to determine whether the appellant's claims may
now be granted. If the decision remains adverse to the
appellant, she and her representative should be provided with
an appropriate supplemental statement of the case and an
opportunity to respond thereto. The case should then be
returned to the Board for further appellate consideration, if
otherwise in order. The purposes of this REMAND are to
assist the appellant and to obtain clarifying medical
information. By this REMAND, the Board intimates no opinion
as to the ultimate disposition of the appeal. No action is
required of the appellant unless she is further notified.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
BRUCE KANNEE
Veterans Law Judge
Board of Veterans' Appeals